McCrory issues executive order on House Bill 2, adds protections for gays and transgender people

RALEIGH, N.C. (WNCN) – Twenty days after signing House Bill 2 into law, Gov. Pat McCrory announced Tuesday he has signed an executive order that amends that decision and expands the state’s employment policy to cover sexual orientation and gender identity.

The governor said Executive Order 93:

Maintains gender-specific restroom and locker room facilities in government buildings and schools

Affirms the private sector can establish its own restroom and locker room policies

Affirms the private sector and local governments’ right to establish their own non-discrimination employment policies for its own employees

Seeks legislation to reinstate the right to sue in state court for discrimination

“After listening to people’s feedback for the past several weeks on this issue, I have come to the conclusion that there is a great deal of misinformation, misinterpretation, confusion, a lot of passion and frankly, selective outrage and hypocrisy, especially against the great state of North Carolina,” McCrory said.

“Based upon this feedback, I am taking action to affirm and improve the state’s commitment to privacy and equality.”

McCrory’s moves come after a vociferous reaction to the bill that included some companies rolling back expansion plans for North Carolina.

Earlier Tuesday, Deutsche Bank announced it will not add 250 jobs, as planned in Cary because of the bill. A Deutsche Bank spokesman declined comment when reached after McCrory’s announcement.

While much of the public discussion of the bill has focused on which bathrooms transgender people should use, the bill also had broader language that addressed discrimination and, pointedly, did not mention sexual orientation.

That part of the bill, combined with the issue of transgender people and choice of bathrooms, raised concerns about whether North Carolina was inclusive and sparked a national discussion of the North Carolina law.

McCrory, in his executive action, did not change the bill when it comes to transgender people and which bathroom they should use. But he did expand the state discrimination policies to include those who are gay and transgender. He also said he would push to change House Bill 2 to allow for North Carolinians to sue for relief in civil court. Under House Bill 2, any discrimination claim had to go through the Human Relations Commission in the N.C. Department of Administration.

E. Gregory Wallace with the Campbell University Law School said McCrory can not change HB2 through an executive order.

“He can tell us what type of practice North Carolina, at least in the agencies he oversees, is going to have but he cannot change what legally what the law prohibits,” Wallace said.

Rep. Nelson Dollar of Wake County said, “The governor has recommended today an accommodation to take a look at that provision and reconsider that in the General Assembly. And I think that’s a reasonable request on behalf of the governor.”

McCrory, however, did not address the issue of wages, which is a third, and significant, part of the bill. Some American cities and governments have begun to pass “living wage” bills. For example, in Kentucky, private companies with state service contracts will have to pay their workers at least $10.10 per hour, according to the Associated Press.

Birmingham, Alabama, passed a law raising the minimum wage to $10.10 earlier this year. The Alabama legislature overrode that decision two days later.

The issue has gained traction in some North Carolina communities. For example, the Orange County Living Wage group has pushed for higher wages in that county.

House Bill 2 prohibits any North Carolina city or county from instituting such a policy, and that measure has raised concerns from the NAACP and other groups.

The Rev. William Barber of the North Carolina NAACP has raised concerns because, he said, HB2 “discriminates against the working poor by taking away municipalities’ ability to demand that contractors raise minimum wages to living wages and pay vacation sick leave and have minority set asides.”

Chris Sgro of Equality NC said McCrory’s action “doubles down on some of the worst provisions included in House Bill 2.

“So while we are glad to see that the Governor has made progress in anti-discrimination measures specifically around workplace protections, if he’s serious about non-discrimination he’s going to need to seek full repeal of House Bill 2.”

David McLennan, political science professor at Meredith College, said despite the changes, the battle over HB2 is far from over.

“But this is now three weeks. It doesn’t look like it’s going to end either. We’ve got the General Assembly session starting in a couple weeks. There are going to be big protests there, and I think they’ll probably continue into the summer.”

Sarah Preston, acting director of ACLU North Carolina said McCrory’s Executive Action “falls far short of what we would hope for the governor’s leadership.”

Transcript from the governors’ office (reaction to his comments follow the full statement):

Hi, I’m North Carolina Governor Pat McCrory.

North Carolina proudly welcomes all people to live, work and visit our great state.

We didn’t become the ninth most populous state in the nation by accident. We have long held traditions of both ensuring equality for all of our citizens and our visitors, while also respecting the privacy of everyone.

We are also a state that strives to allow our people and businesses to be as independent as possible without overreaching government regulations.

These North Carolina values of privacy and equality came into conflict recently when the Charlotte City Council passed a new mandate that forced on businesses a city-wide ordinance of bathroom and locker room regulations, something frankly we had never seen or had before in that great city or in North Carolina.

Simply put, this government overreach was a solution in search of a problem.

In fact, the Charlotte City Council rejected this proposal less than a year ago.

In a letter prior to the most recent vote, I notified the Charlotte City Council that this unnecessary and intrusive mandate conflicts with basic expectations of privacy in the most private of settings.

Therefore, as I expected, the state took action on what was seen as government overreach.

You know, after listening to people’s feedback for the past several weeks on this issue, I have come to the conclusion that there is a great deal of misinformation, misinterpretation, confusion, a lot of passion and frankly, selective outrage and hypocrisy, especially against the great state of North Carolina.

But based upon this feedback, I am taking action to affirm and improve the state’s commitment to privacy and equality.

To that end, today I have signed an executive order with the goal of achieving that fine balance.

This executive order accomplishes the following:

First, it maintains common sense gender-specific restroom and locker room facilities in government buildings and in our schools, and when possible, encourages reasonable accommodations for families and those who have unique or special circumstances.

Second, the private sector can make its own policy with regard to restrooms, locker rooms and/or shower facilities. This is not a government decision. This is your decision in the private sector.

Third, I have affirmed the private sector and local government’s right to establish its own non-discrimination employment policies.

And fourth, as governor, I have expanded our state equal employment opportunity policy to clarify that sexual orientation and gender identity are included.

And fifth, I will immediately seek legislation in the upcoming short session to reinstate the right to sue for discrimination in North Carolina state courts.

Simply put, I have listened to the people of North Carolina, and the people of North Carolina are entitled to both privacy and equality. We can and we must achieve both of these goals.

Now I know these actions will not totally satisfy everyone, but the vast majority of our citizens want common sense solutions to complex issues.

This is the North Carolina way.

Thank you very much, and may God continue to bless the great state of North Carolina.

REACTION TO McCRORY’S DECISION

“Gov. McCrory just put to rest the left’s lies about HB2 and proved it allows private and public employers, non-profits and churches the ability to adopt nondiscrimination policies that are stronger than state and federal law. But that fact is irrelevant to Roy Cooper and his left-wing political correctness mob with their agenda-driven allies in the liberal media, who will never stop trashing North Carolina until they achieve their goal of allowing any man into any women’s bathroom or locker room at any time simply by claiming to feel like a woman.”– Senate leader Phil Berger

“Gov. McCrory’s executive order is a day late and a veto short. The sweeping discrimination law he signed has already cost North Carolina hundreds of jobs and millions of dollars in revenue.

“I’m glad Gov. McCrory has finally acknowledged the great damage his legislation has done, but he needs to do much more.

“The truth is, this executive order doesn’t change the fact that HB 2 has written discrimination into the law.”_ Attorney General Roy Cooper

“Gov. McCrory’s Executive Order affirms the importance of the actions the General Assembly took in passing the Bathroom Bill to protect North Carolina citizens from extremists’ efforts to undermine civility and normalcy in our everyday lives. Private businesses are free to decide for themselves restroom, dressing room and non-discrimination employment policies that best suit their business and employee needs without inconsistent mandates by cities and counties.”_ House Speaker Tim Moore

“Gov. McCrory is now willing to admit the economic toll HB 2 is taking on North Carolina. In the weeks since the Governor signed this new statewide discrimination policy, our state’s reputation has suffered very real damage. This cannot be undone with half measures and political spin. It requires meaningful action. He owes our state nothing short of a full repeal of HB 2 in the opening week of legislative session.”– House Minority Leader Larry Hall

“With his actions today, Governor McCrory acknowledged for the first time the full scope and consequences of his discriminatory law. For two weeks, he’s attempted to mislead about the effects of HB2 with long, incorrect memos and Internet videos. But today’s Executive Order does nothing to fix what’s really wrong with his job-killing law: legalized discrimination that will continue to cost the state of North Carolina jobs and respect.”_ Patsy Keever, North Carolina Democratic Party Chairwoman

“The devastating blow of HB 2 will not be fixed by the band-aid of an executive order.”_ Lambda Legal

“This is a major milestone for North Carolina and it represents the start of a reconciliation process that needs to take place in the aftermath of HB2. The executive order itself references current anti-transgender law imposed by HB2, which is just another reminder of how sweeping and harmful HB2 is.

“All eyes now turn to the General Assembly as it reconvenes later this month. They must continue the process of reconciliation and the only way to do that is to repeal HB2.’_ American Unity Fund senior adviser Tyler Deaton

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